Post-argument commentary: Dismissing deference

Posted Thu, February 28th, 2013 1:37 pm by Ellen D. Katz

The blog is pleased to have reactions to yesterday’s oral arguments from supporters of both sides. This post has reactions from Ellen D. Katz, Professor of Law at The University of Michigan Law School. Her work focuses on voting rights and anti-discrimination law and includes a detailed empirical study of the Voting Rights Act. She filed an amicus brief in support of the respondents.

The question presented in Shelby County v. Holder is whether Congress acted lawfully when it reauthorized Section 5 of the Voting Rights Act in 2006. But an observer at yesterday’s oral argument could be forgiven for not realizing the case presented this question. Much of what was said yesterday suggested that some, and, perhaps most, of the Justices understand a very different question to be at issue: namely, whether the Justices themselves are convinced Section 5 remains necessary.

The difference between the two questions is vast and consequential, as the Justices themselves are well aware. Justice Scalia was explicit that “[t]his is not the kind of question you can leave to Congress.” Should four Justices agree – and there are passages in the transcript that suggest they do – Shelby County’s departure from precedent would be extraordinary.

The Warren Court once opined that “it is for Congress,” and decidedly not for the Court, to weigh competing remedial considerations in this realm, and that congressional judgments should stand so long as the Justices could “perceive a basis” to support them. The Rehnquist Court departed considerably from this deferential stance and demanded “congruence and proportionality” between the means and ends Congress selected. But while that Court rigorously examined congressional judgments and the records supporting them, a good portion of the Roberts Court now appears poised to ignore Congress entirely. It looks as if this Court, rather than Congress, will decide which remedies are needed and where they should apply.

To be sure, the decision in Shelby County is unlikely to scrap prior precedent explicitly, but the ruling widely expected after yesterday’s argument would likely do just that, albeit sub silentio. Consider, for example, the claim pressed by several Justices yesterday that covered states have been unfairly singled out and that problems of equal magnitude exist elsewhere. A holding to this effect would not only disregard considerable record evidence showing that voting problems remain disproportionately concentrated in covered jurisdictions, but it would also deny Congress the power to credit this evidence and draw responsible conclusions from it.

Even more consequential would be a holding that Section 5 is invalid because the problems it targeted have been “solved,” something Shelby County attorney Bert Rein said explicitly and Justice Kennedy implied when he invoked the Marshall Plan. The premise here appears to be that Section 5 is valid only if it is actively blocking widespread unconstitutional discrimination of the sort that first prompted Congress to enact the statute in 1965.

A holding to this effect would suggest that Congress lacks power to address the ways in which contemporary racial discrimination finds expression. Bad actors persist, to be sure, but racial discrimination, including the sort proscribed by the Constitution, does not require malice on the part of every public actor connected with a given policy or even malice from most of them. Electoral rules are typically devised and enforced by many different public actors, such that even seemingly innocuous policies provide space in which both overt discrimination and implicit biases may generate substantial obstacles to minority political participation.

Put differently, the validity of Section 5 does not turn on whether southerners as a group are “more racist” than northerners, a question Chief Justice Roberts has now posed twice. Instead, the question is whether Congress has the power to address something Justice Ginsburg recognized four years ago in the Northwest Austin oral argument – namely, that “it doesn’t go from blatant discrimination to everything is equal.” The conditions that made Section 5 necessary in the first instance have shaped the modern landscape in ways that create opportunities for more subtle forms of intentional discrimination to thrive.

Congress’s decision to reauthorize Section 5 in 2006 is based on this judgment, but it is a judgment the Roberts Courts now appears to think is beyond Congress’s power to make. Were it to so hold, the Court would not only toss out Section 5, but it would leave a host of other federal anti-discrimination measures vulnerable to attack. Going forward, Congress would be left with minimal power to craft new remedies addressing the complex ways discrimination manifests itself in public conduct. In other words, Shelby County would sideline Congress from meaningful participation in a realm in which its power was once thought to be at its pinnacle.

At the close of yesterday’s argument, Shelby County’s Bert Rein said that “it is up to Court to determine whether the problem [addressed by Section 5] indeed has been solved.” Justice Kagan responded bluntly, “Well, that’s a big new power you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that fell within our bailiwick.”

Of course, it doesn’t. At least, not yet.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case.

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